Louisiana Lawyer Blog

Lake Charles Refinery Crackdown

October 10, 2011 | by Broussard, David & Moroux

The Department of Justice (DOJ) filed two felony charges in a bill of information in a Lafayette federal district court against Pelican Refining Company for knowingly violating its permit issued by the Clean Air Act at its refinery located in Lake Charles.

The U.S. Attorney’s Office alleges that from 2005 to 2007, the company knowingly released pollutants into the environment. According to the DOJ, a federal investigation revealed the refinery’s substandard operating conditions, including the intentional release of hydrogen sulfide into the air, the storage of crude oil in tanks in need of repair and the use of plastic children’s swimming pools to control petroleum leaks.

The Clean Air Act is a federal statute designed to prevent and control environmental contamination through the creation of emissions standards, regulations and permit requirements. With Louisiana being home to more than 30 operating refineries, environmental contamination is a serious concern in the state.

Air Show Safety

October 3, 2011 | by Broussard, David & Moroux

After fatal plane crashes at two different air shows within a 24-hour-period, critics are now questioning air show safety in the United States. The first plane crashed in Reno at the National Championship Air Races, killing nine people, including its 74-year-old pilot, and seriously injuring 69 bystanders. Just one day after this accident, another plane crashed at an air show in West Virginia, killing the pilot.

Investigators believe a mechanical error caused the missile-like impact of the Reno crash. Bystanders at the Reno air race reported hearing an unusual gurgling engine noise before the plane plunged into the crowd. The cause of the West Virginia plane crash remains unknown. The pilot attempted to begin an air routine but the plane crashed prior to his completion of the maneuver. National Transportation Safety Board (NTSB) investigators are now at the scene to determine the cause of the accident.

Currently, the Federal Aviation Administration (FAA) has a substantial role in ensuring spectator safety at U.S. air shows. Prior to an air show, the FAA reviews the show’s plans and inspects participants’ planes and courses to ensure spectator safety in the event of a crash. The FAA also requires pilots to obtain medical certificates prior to participating in an air show and to prove that they are competent to participate in the show.

Colorado Food Poisoning

September 26, 2011 | by Broussard, David & Moroux

A Colorado-based melon farm issued a recall last week after its cantaloupes tested positive for listeria, a deadly bacteria. The contaminated cantaloupes have been linked to at least two deaths and 22 illnesses in Colorado and New Mexico. State authorities believe that this number could increase in more states pending test results.

In light of news of another bacterial outbreak linked to produce, it is no surprise that about 76 million Americans suffer from food poisoning each year. Food contamination can occur at any stage of food production. For this reason, farms, processors, food handlers and restaurants have a duty to adequately manage food products with care and to ensure that their products are safe for consumption.

BP Shortcuts Blamed for Gulf Oil Spill

September 19, 2011 | by Broussard, David & Moroux

The U.S. Coast Guard and Department of Interior’s Bureau of Ocean Energy Management and Enforcement released a 500-page report this week finding BP primarily responsible for the Gulf Oil Spill. The report revealed that the company took many shortcuts in an attempt to cut costs and complete its troubled well project.

The report states that the primary cause of the drilling rig’s explosion was defective cement at the base of the well. This cement is typically used to contain oil and gas within the wellbore. According to a detailed analysis of the report, this failure led to a chain of errors that ultimately caused natural gas to shoot onto the drilling platform and ignite the explosion. ‘

This final report could affect the allocation of liability among the parties responsible for the spill in subsequent litigation and increases the likelihood that BP will face criminal charges for its role in the Gulf Oil Spill. The report makes clear that BP, as the owner of the well, was responsible for the accident and further indicates that Transocean and Halliburton, BP’s chief contractors who supplied the cement, contributed to the deadly errors.

Louisiana Medical Review Panel’s Findings Not Admissible

September 13, 2011 | by Broussard, David & Moroux

The Louisiana Supreme Court recently held in McGolthlin v. Christus St. Patrick Hosp. that a Medical Review Panel’s finding is not subject to mandatory admissibility when the Medical Review Panel exceeded its statutory authority by making its determination based on of a finding of credibility.

In Louisiana, a plaintiff suing for medical malpractice is statutorily required to appear before a Medical Review Panel. La. R.S. 40:1299.47 governs this procedure. The panel is comprised of three health care providers licensed to practice in Louisiana and one attorney.

Before the panel, both parties present their case and evidence. The panel then decides whether the allegedly negligent doctor breached an applicable medical standard of care. The statute requires that the panel’s finding must be offered into evidence in court.

The Court’s holding purports to ameliorate any inequity that may result when a medical review panel exceeds its statutory authority. Now, if the panel inappropriately makes a credibility determination, the panel’s decision will carry no weight in subsequent malpractice litigation.

Fired for Facebook

September 6, 2011 | by Broussard, David & Moroux

This year, the National Relations Board (NLRB) received more than one hundred charges filed by employees who were fired for an online comment or post about working conditions, according to an analysis released by the U.S. Chamber of Commerce. The recent spike in complaints raises a novel question: Is it lawful for an employer to terminate an employee for posting negative comments about their employment on social media?

The NLRB is an independent federal government organization that investigates and remedies unfair labor practices. The NLRB protects the rights of employees to unite together to improve their working conditions, with or without a union. In the context of social media, legal issues arise when an employee posts a comment about his working conditions or wages on a public online forum such as Facebook or Twitter.

The NLRB is now considering whether federal law protects employees’ rights to post these comments about their working conditions online. If the NLRB determines that such activity is protected under federal labor law, employers will no longer be able to terminate employees who post critical comments about their working conditions online. The NLRB is expected to offer employers guidance about this issue later this year.

Until then, it is important for employees to follow company guidelines and to understand their legal rights. If you believe that your workers’ rights have been violated by your employer or union, you should not hesitate to contact an experienced attorney. For questions, contact Broussard, David & Moroux at 1-888-337-2323 (toll free) or 337-233-2323 (local).

Pearl River Toxic Water Exposure?

August 29, 2011 | by Broussard, David & Moroux

A recent untreated wastewater spill in the Pearl River killed thousands of fish. State officials are not certain how the contamination will impact the surrounding community’s drinking water; however, some officials are optimistic that the damage will not affect citizens because the Pearl River is not a source of drinking water for neighboring communities.

Nevertheless, the spill highlights the need to ensure corporations take adequate safety precautions when handling hazardous toxins in our communities. Groundwater and soil contamination pose serious long-term health consequences in affected communities. The exposure of even a small amount of a toxin can lead to cancer, neurological disorders, liver and kidney damage, immune system problems, and birth defects.

Medicare Set-Asides and your settlement

August 22, 2011 | by Broussard, David & Moroux

The Medicare Secondary Payer (MSP) statute is a federal statute that governs the receipt of Medicare payments. Under the statute, Medicare is a secondary insurer that may only be used after an individual exhausts any other available means of insurance. Accordingly, in workers compensation claims, workers compensation should be the primary source of medical insurance coverage.

The MSP statute states that if the plaintiff intends to settle with workers compensation for an amount greater than $250,000 and anticipates future medical treatment, the plaintiff must allocate a specific portion of the settlement to a Medicare Set Aside account (MSA). If the injured individual exhausts his MSA allocation, then he may receive Medicare payments. This account protects Medicare’s interests as a secondary insurer.

Being Aware of Your Digital Footprint: How Facebook Can Destroy a Case

August 15, 2011 | by Broussard, David & Moroux

Social media can be helpful tool to connect to family, friends and colleagues. However, with sites such as Facebook boasting 750 million users, pictures and posts on social media sites can easily become evidence utilized to destroy a case. Most recently, attorneys have turned to Facebook for evidence in family law and workers compensation cases, where evidentiary rules can be more relaxed.

Facebook has various features that can threaten a plaintiff’s case. For example, “wall” comments or published photos might paint a different picture than the plaintiff’s contentions in the litigation. Additionally, status updates include dates and times that can wholly contradict a plaintiff’s claims about the magnitude of an injury.

Though attorneys need to overcome significant evidentiary hurdles to utilize social media as evidence, litigants should still be cautious in posting any information online. If you or a loved one plan to bring a personal injury lawsuit, it is important to pay close attention to your digital footprint. Because privacy settings are unreliable, you should consider temporarily deactivating your Facebook account until litigation ends.

Pythons in Florida: Strict Liability for Exotic Animals

August 8, 2011 | by Broussard, David & Moroux

A Florida couple stood trial this month, facing third degree murder and manslaughter charges after their starved pet python tragically killed their toddler. In addition to criminal charges, many states, including Florida, have laws that impose strict liability on owners of exotic animals that seriously injure or kill.

Strict liability means legal responsibility for damage regardless of fault. In Louisiana, Civil Code Article 2321 governs liability with respect to wild animals and ordinary household pets. Article 2321 states that “the owner of an animal is answerable for the damage caused by the animal” but requires a showing that the owner “knew or should have known that his animal’s behavior caused the damage.” The article, however, excludes owners of dogs, stating dog owners are strictly liable for injuries caused by their dogs.